Citation Nr: 0018547
Decision Date: 07/14/00 Archive Date: 07/14/00
DOCKET NO. 99-06 446 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a low back
disability.
2. Evaluation of service-connected second degree burn scars
on the right arm and right flank, rated as 10 percent
disabling from April 16, 1998.
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from March 1962 to
March 1966.
This appeal arises from an October 1998 rating action of the
Jackson, Mississippi, regional office (RO). In that
decision, the RO granted service connection for second degree
burn scars of the right arm and right flank and assigned a
10 percent evaluation to this disability, effective from
April 16, 1998. Also by this rating action, the RO denied
service connection for a low back disorder.
Further review of the claims folder indicates that, by a
January 1999 rating action, the RO granted service connection
for allergic conjunctivitis of both eyes, assigned a
noncompensable evaluation to this disability effective from
December 1998, and denied service connection for headaches
and sinusitis. Also in January 1999, the RO notified the
veteran of this decision. In a statement received at the RO
in March 1999, the veteran expressed disagreement with the
noncompensable rating assigned to his service-connected eye
disorder and with the denial of his claims for service
connection for headaches and sinusitis. Although the RO
furnished the veteran with a statement of the case concerning
these issues in April 1999, he failed to submitted a
substantive appeal. Consequently, the issue regarding the
evaluation of the initial noncompensable rating assigned to
the service-connected allergic conjunctivitis of both eyes as
well as the claims for service connection for headaches and
sinusitis are not currently in appellate status before the
Board of Veterans' Appeals (Board).
FINDINGS OF FACT
1. The veteran has not submitted competent medical evidence
establishing that his low back disability, currently
diagnosed as degenerative disc disease at multiple levels of
the lumbar spine, is associated with the in-service
occurrences of treatment for low back pain.
2. The service-connected burn scar on the medial side of the
veteran's right arm involves 70 percent of this extremity.
3. The service-connected burn scar on the veteran's flank
includes a band approximately 10 centimeters long and four
centimeters wide at the level of his umbilicus and involves
his lower back and abdomen.
4. Neither the service-connected second degree burn scar on
the veteran's right arm nor the service-connected second
degree burn scar on his right flank is productive of unusual
or exceptional disability factors.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for a low
back disability is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The criteria for a combined evaluation greater than
10 percent for the service-connected second degree burn scar
on the veteran's right arm and the service-connected second
degree burn scar on his right flank are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.25, 4.27,
4.30, 4.118, Codes 7801, 7802 (1999).
3. Referral of the rating claim for the service-connected
second degree burn scars on the veteran's right arm and right
flank to the VA Central Office for extraschedular
consideration is not warranted. 38 C.F.R. § 3.321(b)(1)
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection For A Low Back Disability
Service connection may be granted for a disease or injury
incurred in or aggravated by military service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1999).
The first step in this analysis is to determine whether the
veteran has presented a well-grounded claim. In this regard,
the veteran bears the burden of submitting sufficient
evidence to justify a belief by a fair and impartial
individual that the claim is well grounded. 38 U.S.C.A.
§ 5107(a); Robinette v. Brown, 8 Vet.App. 69, 73 (1995).
Simply stated, a well-grounded claim must be plausible or
capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Where the determinative issue
involves medical etiology or a medical diagnosis, competent
medical evidence that a claim is "plausible" or "possible"
is required for the claim to be well grounded. See Epps
v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown,
7 Vet.App. 379, 384 (1995); Grottveit v. Brown, 5 Vet.App. 91
(1993).
Service connection generally requires (1) medical evidence of
a current disability; (2) medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury. See Epps, supra and
Caluza v. Brown, 7 Vet.App. 498 (1995). See also Heuer,
supra; Grottveit, supra; and Savage v. Gober,
10 Vet.App. 488, 497 (1997). In the absence of evidence of a
well-grounded claim, there is no duty to assist the claimant
in the development of facts pertinent to the claim, and the
claim must fail. See Epps, supra.
Alternatively, a claim may be well grounded based on
application of the rule for chronicity and continuity of
symptomatology, as set forth in 38 C.F.R. § 3.303(b) (1999).
The chronicity provision applies where there is evidence,
regardless of its date, which shows that a veteran had a
chronic condition either in service or during an applicable
presumption period and that the veteran still has such a
condition. See Savage v. Gober, 10 Vet. App. 488, 495-97
(1997). That evidence must be medical, unless it relates to
a condition that the Court has indicated may be attested to
by lay observation. Ibid. If the chronicity provision does
not apply, a claim may still be well grounded or reopened on
the basis of 38 C.F.R. § 3.303(b) "if the condition is
observed during service or any applicable presumption period,
continuity of symptomatology is demonstrated thereafter, and
competent evidence relates the present condition to that
symptomatology." Savage, 10 Vet. App. at 498.
Throughout the current appeal, the veteran has asserted that
he incurred a low back disability during his active military
duty and that he continues to experience symptoms of this
disorder. Service medical records note treatment for
complaints of low back pain. The February 1966 separation
examination reflects the veteran's complaints of recurring
back pain since 1963, objective evaluation findings of a
normal spine, and the examining military physician's
conclusion that the veteran's recurring back pain had been
treated with no complications or sequela. Relevant
post-service medical records include a diagnosis of
degenerative disc disease at multiple levels of the veteran's
lumbar spine.
The Board acknowledges the veteran's contention that he
incurred a chronic low back disability during his active
military duty, the service medical records which reflect his
complaints of low back pain, as well as the post-service
medical reports which include a diagnosis of degenerative
disc disease of multiple levels of his lumbar spine.
Significantly, however, the claims folder contains no
competent medical evidence associating the degenerative disc
disease of multiple levels of the veteran's lumbar spine with
the in-service occurrences of treatment for low back pain.
In fact, the examiner who conducted the January 1999 VA spine
examination specifically stated that the degenerative disc
disease of multiple levels of the veteran's lumbar spine "is
more likely than not to be unrelated to the muscular pain
that he experienced in the service. It is most likely due to
aging and the effect of activity over the past several
decades."
The only evidence of record of a nexus between the diagnosed
degenerative disc disease of multiple levels of the veteran's
lumbar spine and his service is his own lay statements of
continued symptomatology. Because the veteran is a layperson
with no medical training or expertise, his assertions
standing alone do not constitute competent medical evidence
of a nexus between the currently diagnosed degenerative disc
disease of multiple levels of his lumbar spine and the
in-service episode of treatment for low back pain. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992).
In this regard, the Board notes that, at a VA miscellaneous
neurological disorders examination conducted in January 1999,
the veteran reported experiencing during service intermittent
back pains which he attributed to excessive exertion from
moving heavy furniture. Additionally, the veteran described
intermittent low back pain following his separation from
active military duty. The examiner provided an impression of
low back pain which was mainly non-neurogenic with no
significant neurological deficits and expressed his opinion
that the veteran's low back symptoms "seem to go back to the
time he was in the service."
Significantly, however, such a speculative statement does not
provide support for a well-grounded claim. Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). Rather, the
examiner's statement seems to be nothing more than a
recitation of the veteran's contentions regarding continued
symptomatology without any exercise of measurable judgment
that takes into account the medical facts specific to this
case (e.g., from relevant service, and post-service, medical
records). This statement of a conceivable possibility,
therefore, does not provide a basis for concluding that the
veteran's claim is well grounded. Id.
Thus, the Board must conclude that the veteran has not
submitted competent medical evidence establishing that his
currently diagnosed low back disability is related to his
service. Therefore, his claim for service connection for a
low back disability must be denied on the basis that it is
not well grounded.
Furthermore, in the substantive appeal which was received at
the RO in March 1999, the veteran asserted that he had
received treatment from his private physician in Selma,
Alabama shortly after discharge from active military duty and
from a physician at a medical facility in Chicago, Illinois
briefly in the late sixties and early seventies.
Importantly, however, the veteran also explained that the
treatment records from both of these physicians are
unavailable. Consequently, a remand to accord the RO an
opportunity to obtain these treatment records is not
necessary.
In any event, because VA's duty to assist claimants is not
triggered here by the submission of a well-grounded claim,
the Board finds that VA has no obligation to develop this
particular claim further. See Morton v. West,
12 Vet.App. 477, 485-486 (1999). If the veteran wishes to
submit additional pertinent treatment records, he may do so.
The Board views its discussion in this decision as sufficient
notification to the veteran of the elements necessary to
render his claim well grounded and to explain to him the
reason that his current attempt fails to meet the
well-grounded requirements.
Rating For Service-Connected
Burn Scars On The Right Arm And Right Flank
Initially, the Board notes that the veteran's rating claim is
well grounded. In other words, the Board concludes that the
veteran has presented a plausible claim. 38 U.S.C.A.
§ 5107(a) (West 1991). See Proscele v. Derwinski,
2 Vet.App. 629, 632 (1992) (in which the United States Court
of Appeals for Veterans Claims (Court) held that a claim for
an increased rating is well-grounded when the appellant
asserts that his or her service-connected disability worsened
since the prior rating).
The Board is also satisfied that all relevant facts have been
properly developed to the extent possible. As sufficient
data exist to address the merits of the veteran's rating
claim, the Board concludes that the VA has adequately
fulfilled its statutory duty to assist the veteran in the
development of his claim. No further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski,
1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90
(1990).
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2
(1999). However, where entitlement to compensation has
already been established and an increase in disability rating
is at issue, the present level of disability is of primary
concern. Although a review of the recorded history of a
disability should be conducted in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet.App. 55, 58 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes. 38 C.F.R.
§ 4.27 (1999). Because the veteran has appealed from an
initial award, consideration will be given to whether a
rating greater than 10 percent for the service-connected
second degree burn scars on his right arm and right flank was
warranted for any period of time during the pendency of his
claim. Fenderson v. West, 12 Vet. App. 119 (1999).
According to the service medical records in the present case,
the veteran was hospitalized for two weeks between August and
September 1963 for treatment for burns incurred when a
radiator cap blew off and sprayed him with water.
Specifically, the veteran sustained a second degree
moderately severe burn on approximately 70 percent of his
right arm and a second degree burn on his right flank which
covered a band approximately 10 centimeters long and four
centimeters wide at the level of his umbilicus. The
veteran's wounds were debrided locally. He was treated with
pHisoHex whirlpool therapy on which regime his burns very
slowly and gradually improved and primarily healed.
A VA scars examination conducted in June 1998 demonstrated
the presence of a 100 square inch well-healed, nontender, and
pigmented first degree burn scar on the veteran's medial
right upper extremity as well as a 30 square inch
well-healed, nontender, and pigmented first degree burn scar
on his right flank (including his lower back and abdomen).
Based on this evidence, the RO, by an October 1998 rating
action, granted service connection for second degree burn
scars of the right arm and right flank and assigned a
10 percent evaluation to this disability, effective from
April 1998. Although the recent VA examination included the
diagnosis of first degree burn scars on the veteran's medial
right upper extremity and right flank, the Board has rated
the burn scars on the basis of the severity shown by the
service medical records, which represent the medical evidence
in closest proximity to the injury.
Accordingly, the Board will proceed to rate the veteran's
service-connected burn scars under the appropriate diagnostic
code which rates impairment resulting from second degree burn
scars. Pursuant to this code, evidence of second degree burn
scars on an area or areas approximating one square foot
warrants the assignment of a 10 percent disability rating.
38 C.F.R. § 4.118, Code 7802 (1999). In addition, ratings
for widely separated areas, as on two or more extremities, on
anterior and posterior surfaces of extremities, or on the
trunk, will be separately rated and combined. 38 C.F.R.
§ 4.118, Note following Code 7802 (1999), which refers to
38 C.F.R. § 4.118, Note (2) following Code 7801 (1999).
The only pertinent medical reports which have been obtained
and associated with the claims folder in the present case are
the service medical records as well as the report of the June
1998 VA scars examination. The claims folder contains no
relevant post-service outpatient or inpatient medical
reports, nor has the veteran alleged the presence of such
additional treatment records.
The pertinent medical records included in the claims folder
indicate that one of the veteran's burn scars was initially
found to cover a band approximately 10 centimeters long and
four centimeters wide at the level of his umbilicus and was
recently described as including his lower back and abdomen.
The veteran's other burn scar was initially determined to
cover approximately 70 percent of his right upper extremity
and was recent described as involving the medial side of his
right upper extremity.
The Board finds that the burn scar on the veteran's right
upper extremity and on his trunk are on widely separated
areas of his body and should be separately rated. 38 C.F.R.
§ 4.118, Note following Code 7802 (1999), which refers to
38 C.F.R. § 4.118, Note (2) following Code 7801 (1999). To
do this requires comparison of each of the scar areas, 100
square inches and 30 square inches, with the criteria for a
10 percent rating, 1 square foot (144 square inches). Such
comparison shows that the right arm scar more nearly
approximates the criteria for a compensable 10 percent
rating, while the flank scar does not. The combined rating
for these scars remains 10 percent. 38 C.F.R. § 4.25 (1999).
A higher combined rating cannot be awarded.
Additionally, review of the claims folder indicates that the
RO has determined that referral of the veteran's rating case
to the VA Central Office for extraschedular consideration is
not warranted. The Board observes that the claims folder
contains no evidence whatsoever that the veteran's
service-connected burn scars have resulted in frequent
hospitalizations or marked interference with employment such
as to render impractical the application of the regular
schedular standards. Indeed, the findings on recent VA
examination are relatively normal with respect to whether the
burn scars are symptomatic. Moreover, there is a paucity of
evidence over the years since the original injury to
demonstrate that the burn scars have had any significant
industrial effect beyond that contemplated in the separate
10 percent ratings now assigned.
Accordingly, the Board finds that the RO did not abuse its
discretion in refusing to refer this rating claim to the
Under Secretary of Benefits at VA Central Office for
extraschedular consideration under the provisions of
38 C.F.R. § 3.321(b)(1) (1999). Furthermore, based on this
evidence, the Board finds that separate ratings greater than
10 percent for the service-connected second degree burn scar
on the veteran's right arm and the service-connected second
degree burn scar on his right flank are not warranted for any
period during the processing of his original claim.
Fenderson, supra.
ORDER
A well-grounded claim not having been submitted, service
connection for a low back disability is denied.
An increased rating for second degree burn scars on the
veteran's right arm and on his right flank is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals